FAMILY LAW - APPEAL - APPLICATIONS – CHILDREN - RELOCATION - Interim parenting orders - Where mother moved approximately 144 km from town in which parties formerly lived - Whether Federal Magistrate erred in exercise of discretion requiring mother to relocate children pending final hearing.
Consideration of principles applicable to determination of interim parenting application where one party seeks to relocate children's residence after introduction of Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - Whether different considerations apply when matter being determined on interim rather than final basis - Whether different considerations apply if relocation is “local” - Whether different considerations apply if relocation does not substantially affect time child applies with other parent - Effect of order for equal shared parental responsibility – Child’s best interest remain paramount but not sole consideration - Application of principles enunciated in Goode and Goode (2006) FLC 93-286.
Whether Federal Magistrate failed to apply the relevant provisions of Part VII - Whether Federal Magistrate erred in exercise of discretion in requiring mother to return children - No error by Federal Magistrate - Appeal dismissed.
APPLICATIONS TO ADDUCE FURTHER EVIDENCE - Whether appropriate to adduce further evidence - Evidence available at time of hearing before Federal Magistrate - Whether evidence contentious - Whether proposed evidence relevant to variation or final hearing - Not appropriate to admit further evidence - Applications dismissed.
COSTS - No departure from s 117(1) sought or warranted.
Easteal, P, Behrens, J and Young, L, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law, 234
Family Law Council (Australia), Relocation: a report to the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Morgan v Miles [2007] FamCA 1230
Case
[2007] FamCA 1230
Decision Date
CaseChat Overview and Summary
The appeal concerned interim parenting orders made by a Federal Magistrate regarding the relocation of children. The mother had moved approximately 144 kilometres from the town where the parties formerly resided, and the Federal Magistrate had ordered her to relocate the children back pending a final hearing. The father sought to uphold this order.
The court was required to determine whether the Federal Magistrate erred in the exercise of discretion by requiring the mother to relocate the children. This involved considering the principles applicable to interim parenting applications, particularly in light of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The court also considered whether different principles applied to interim versus final determinations, whether a "local" relocation or one that did not substantially affect the time a child spent with a parent warranted different considerations, and the effect of an order for equal shared parental responsibility. The paramount consideration remained the child's best interests, but this was not the sole consideration. The court also had to assess whether the Federal Magistrate failed to apply the relevant provisions of Part VII of the Family Law Act 1975 (Cth).
In its reasoning, the court found that the Federal Magistrate had not erred in the exercise of discretion. The principles enunciated in *Goode and Goode* (2006) FLC 93-286 were applied, and the court determined that the Federal Magistrate had correctly considered the relevant provisions of the Family Law Act 1975 (Cth). Applications to adduce further evidence were dismissed as the evidence was available at the time of the original hearing and was not considered appropriate for admission. No departure from the usual costs order under s 117(1) of the Family Law Act 1975 (Cth) was sought or warranted.